Almpantis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1076
•20 MAY 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Almpantis v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1076
File number: PEG 464 of 2019 Judgment of: JUDGE KENDALL Date of judgment: 20 May 2021 Catchwords: MIGRATION – Partner visa – decision of the Administrative Appeals Tribunal – where independent expert found applicant had not suffered family violence – where Tribunal accepted expert opinion to be correct – error in expert opinion – materiality – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), s 476
Migration Regulations 1994 (Cth), regs 1.21, 1.23,
cll 820.211, 820.221 of Schedule 2Cases cited: Minister for Immigration & Border Protection v SZMTA [2019] HCA 3
Minister for Immigration & Citizenship v Maman [2012] FCAFC 13
Perez v Minister for Immigration & Border Protection [2017] FCAFC 180
Zreika v Minister for Home Affairs [2020] FCA 995
Number of paragraphs: 111 Date of hearing: 6 May 2021 Place: Perth Counsel for the Applicant: Mr H Glenister Solicitor for the Applicant: William Gerard Legal Pty Ltd Counsel for the First Respondent: Ms A Ladhams Second Respondent: Submitting appearance save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 464 of 2019 BETWEEN: IOANNIS ALMPANTIS
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
20 MAY 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL
The applicant is a citizen of Belgium and Greece. He arrived in Australia on a Working Holiday visa in March 2013 (Court Book (“CB”) 116).
On 22 March 2015, the applicant applied for a Partner (Temporary) (class UK) (subclass 820)/ Partner (Residence) (class BS) (subclass 801) visa (the “visa”) (CB 1-75 and 82-90). The applicant had married his sponsor on 11 October 2014 (CB 48).
On 2 March 2017 (following various requests for information from the then Department of Immigration & Border Protection (CB 93-101 and 104-111)), a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 116-139). The delegate was not satisfied that the applicant was the “spouse” or “de-facto partner” of the sponsor as that term is defined in the Migration Act 1958 (Cth) (the “Act”) and the Migration Regulations 1994 (Cth) (the “Regulations”). Accordingly, the applicant did not meet cl 820.211 of the Regulations. On that basis, the delegate refused to grant the applicant the visa.
On 23 March 2017, the applicant filed an application for review of the delegate’s decision in the Administrative Appeals Tribunal (the “Tribunal”) (CB 140-141).
On 24 January 2018, the applicant attended a hearing before the Tribunal (CB 176-178). At that hearing the applicant gave the Tribunal various documents. These included a statutory declaration and psychological assessment (both of which related to claims of family violence) and an application for a Regional Sponsored Migration Scheme (subclass 187) (direct entry) visa (CB 179-200).
The Tribunal adjourned that hearing.
The applicant attended a further hearing on 18 January 2019 (CB 208-210). Supporting documents addressing the applicant’s medical appointments and medical treatment were given to the Tribunal (CB 211-228).
The applicant was given 14 working days after that further hearing to provide further information to the Tribunal (CB 229).
On 7 February 2019, the applicant provided further information to the Tribunal. This information related to travel bookings for the applicant and his sponsor, photographs, invoices, marriage certificates, utility bills and social media posts (CB 230-292).
On 1 March 2019, the Tribunal invited the applicant to provide a photograph that he had made reference to in the hearing on 18 January 2019 (CB 295-296). In response, the applicant provided a letter, a number of photographs and social media posts and a statutory declaration on 15 March 2019 (CB 297-308).
On 5 April 2019, the Tribunal advised the applicant that it was not satisfied that he had suffered family violence during the course of his relationship with his sponsor. The Tribunal then referred the matter to an independent expert (CB 311-312; Affidavit of Marie Therese Azar affirmed 1 July 2020).
The applicant was interviewed by an independent expert on 24 April 2019 (CB 316).
On 9 May 2019, the independent expert gave the Tribunal a completed assessment report (CB 318-337). The independent expert’s opinion was that the applicant had not suffered family violence.
On 15 May 2019, the applicant was invited to comment on or respond to the independent expert’s opinion (CB 340-341). No response was received.
The Tribunal wrote to the applicant on 6 June 2019 and gave him a further five business days to comment on or respond to the independent expert’s opinion (CB 345).
On 12 June 2019, the applicant gave a statement to the Tribunal dated 10 June 2019 disputing the independent expert’s findings (CB 346-349).
On 5 July 2019, the applicant gave the Tribunal a report from his psychologist dated 29 June 2019 (CB 351-353).
On 24 July 2019, the Tribunal referred the matter to the independent expert for further consideration of the new material (CB 356-376).
On 15 August 2019, the independent expert provided a further report. She remained of the opinion that the applicant had not suffered family violence (CB 377-383).
On 17 September 2019, the applicant was invited to comment on or respond to the further independent expert’s report and opinion (CB 386-387).
On 29 September 2019, the applicant provided a further response, again disagreeing with the independent expert’s opinion (CB 397-399).
On 31 October 2019, the applicant attended another hearing before the Tribunal (CB 400-402).
The Tribunal made an oral decision at the conclusion of the hearing on 31 October 2019 (CB 403-406). On 20 December 2019, the Tribunal gave the applicant a written statement of its decision and reasons (CB 427-440).
On 28 November 2019, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal fell into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 14 pages long. Unfortunately, it does not contain paragraph numbers. This is less than ideal and should be avoided. Fortunately, it is not necessary to summarise the Tribunal’s decision in any great detail for the purposes of this judgment. This is because the applicant’s grounds of review only take issue with the independent expert’s report – not the Tribunal’s decision per se. In the circumstances, as discussed below, if the applicant successfully establishes that the independent expert’s opinion has not been formed in accordance with law then the Tribunal’s decision will be vitiated by jurisdictional error.
Relevantly, the Tribunal was not satisfied that the applicant had been subjected to family violence during the course of his relationship with his sponsor, referred the matter to an independent expert on two occasions, gave the applicant an opportunity to respond to the independent expert’s opinion on two occasions and, overall, was satisfied that the independent expert’s opinion was properly made and authorised.
As the Tribunal was satisfied that the independent expert’s report was properly made, it had no choice, legally, but to accept that opinion: the Regulations, reg 1.23(10)(c)(ii).
Relevantly, if the independent expert’s report was not properly made, then the Tribunal has “acted on an incorrect basis” and, accordingly, the Court will find that there has been jurisdictional error of the sort this Court can address: Minister for Immigration & Citizenship v Maman [2012] FCAFC 13 at [64]-[65].
PROCEEDINGS IN THIS COURT
The applicant filed an amended application for judicial review in this Court on 1 February 2021. That application contained 2 grounds of review, with particulars, as follows:
2. The decision made by the Second Respondent is vitiated by jurisdictional error due to the opinion of the independent expert on whether the Applicant has suffered relevant family violence being formed on misunderstandings of the statutory definition of ‘relevant family violence’.
Particulars
a. The independent expert misunderstood the statutory definition by importing a requirement that the family violence have elements of controlling or coercive intent or behaviour.
b. The independent expert misunderstood the meaning of the term ‘wellbeing’ as it appears in the statutory definition.
c. The independent expert did not understand that events that occurred after the cessation of the relationship could constitute relevant family violence.
3. The decision made by the Second Respondent is vitiated by jurisdictional error due to the independent expert failing to consider integers of the Applicant’s claim to have suffered relevant family violence.
Particulars
a. The independent expert failed to consider whether the Applicant’s claim that he had been threatened by “bikies” was relevant family violence.
b. The independent expert failed to consider whether the Applicant’s claim that he was deprived of his dog was relevant family violence.
The evidence before the Court includes a Court Book numbering 440 pages (marked as Exhibit 1) and an affidavit of Marie Therese Azar affirmed 20 February 2020 (which annexes a document inadvertently omitted from the Court Book).
The applicant was represented by Mr Glenister. The Minister was represented by Ms Ladhams. Both lawyers provided outlines of written submissions dated 12 April 2021 and 22 April 2021 respectively. The Court commends both parties for the clarity of their written submissions.
Mr Glenister and Ms Ladhams also appeared, respectively, at the hearing before the Court on 6 May 2021. Their oral submissions were also clear and concise and the Court thanks both Mr Glenister and Ms Ladhams for their considerable assistance with this matter.
Given the succinct and clear nature of the written submissions, the Court has extracted both sets of submissions in full as they relate to each ground of review.
LEGISLATIVE PROVISIONS
Both Mr Glenister and Ms Ladhams provided a detailed summary of the legislative provisions applicable here. The Court notes, relevantly, as follows.
The Tribunal was satisfied that the applicant and sponsor were in a relationship until
26 July 2016 (as such, the applicant was, implicitly, the sponsor’s “spouse”).
The Tribunal was satisfied that, at the time of the application, the applicant and the sponsor met cl 820.211 of the Regulations.
However, the Tribunal also had to be satisfied that the applicant was the “spouse” of the sponsor at the time of decision unless:
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
…
has suffered family violence committed by the sponsoring partner;
(the Regulations, cl 820.221(3))
Here, the applicant made a “non-judicially determined claim of family violence”. That term is defined in reg 1.23(8) and (9) of the Regulations. It is unnecessary to detail these provisions here. It suffices to note that the Tribunal accepted that the applicant had made a valid claim of non-judicially determined family violence.
When such a claim is made, reg 1.23(10) of the Regulations outlines how the Minister (or, here, the Tribunal) should consider it:
(10) If an application for a visa includes a non‑judicially determined claim of family violence:
(a) the Minister must consider whether the alleged victim has suffered relevant family violence; and
(b) if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and
(c) if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:
(i) the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and
(ii) the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.
“Relevant Family violence” is defined in reg 1.21 to mean:
…conduct, whether actual or threatened, towards:
(a) the alleged victim; or
(b)a member of the family unit of the alleged victim; or
(c) a member of the family unit of the alleged perpetrator; or
(d) the property of the alleged victim; or
(e) the property of a member of the family unit of the alleged victim; or
(f) the property of a member of the family unit of the alleged perpetrator;
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.
In this matter, the Tribunal considered whether the applicant had suffered family violence. The Tribunal was not satisfied that he had been the subject of family violence (CB 438).
Pursuant to reg 1.23(10)(c)(i), the Tribunal was then required to seek the opinion of an independent expert.
Independent expert is defined in reg 1.21 as:
… a person who:
(a) is suitably qualified to make independent assessments of non‑judicially determined claims of family violence; and
(b) is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non‑judicially determined claims of family violence.
There is no issue in this case that the independent expert met that definition.
The Tribunal referred the applicant’s matter to the independent expert. The independent expert formed the opinion that the applicant had not suffered family violence.
The Tribunal, by virtue of reg 1.23(10)(c)(ii), took that opinion to be correct. Accordingly, it found that the applicant had not suffered family violence and did not, as a result, meet cl 820.221.
The Minister does not dispute that, in certain circumstances, if the independent expert’s opinion is not formed in accordance with the law, then the Tribunal’s decision will be vitiated by error.
Examples of situations in which the Court held that an independent expert’s opinion was not formed in accordance with law include:
·where the independent expert has denied the victim procedural fairness: Maman at [64];
·where the independent expert was under a misunderstanding as to the correct question to be asked and, thereby, asked itself the wrong question: Perez v Minister for Immigration & Border Protection [2017] FCAFC 180 (“Perez”);
·where the independent expert excluded from its consideration a claim of family violence so made: Perez.
The Minister emphasised the scope of reg 1.23(13) and (14) in matters of this sort. Those provisions provide:
(13) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) an application for a visa includes a non‑judicially determined claim of family violence; and
(b) the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.
(14) For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
The Court will assess of reg 1.23(13) and (14) within the context of this matter further below.
GROUND 2
Ground 1 as detailed in the original application was abandoned.
Ground 2 provides:
2. The decision made by the Second Respondent is vitiated by jurisdictional error due to the opinion of the independent expert on whether the Applicant has suffered relevant family violence being formed on misunderstandings of the statutory definition of ‘relevant family violence’.
Particulars
a. The independent expert misunderstood the statutory definition by importing a requirement that the family violence have elements of controlling or coercive intent or behaviour.
b. The independent expert misunderstood the meaning of the term ‘wellbeing’ as it appears in the statutory definition.
c. The independent expert did not understand that events that occurred after the cessation of the relationship could constitute relevant family violence.
Applicant’s Submissions
In relation to ground 2, Mr Glenister for the applicant relevantly submitted as follows in written submissions dated 12 April 2021:
35. The expert was required to determine whether the Applicant had suffered family violence the whole or part of which occurred during the relationship. If the expert erroneously asked only whether the Applicant suffered family violence during the relationship, the Tribunal’s decision is affected by jurisdictional error.
36. The expert accepted the Applicant’s claim that the bikies threatened him and that this had caused him to fear for his safety. The expert noted in both reports that this incident happened after the cessation of the Applicant’s relationship with the sponsor.
37. In these circumstances, had the expert correctly understood her task, she would have asked and answered the following questions:
i. Was the sponsor behind the bikies threatening the Applicant (as was claimed by the Applicant)?
ii. If so, was this part of a course of conduct commenced before the cessation of the Applicant’s relationship to the Sponsor?
38. The failure to ask and engage with these questions indicates that the expert erroneously confined her analysis of whether the Applicant suffered relevant family violence to the period of his relationship with the sponsor. The Tribunal’s decision is thereby affected by jurisdictional error, and the Applicant is entitled to the relief sought.
Minister’s Submissions
In turn, Ms Ladhams for the Minister submitted as follows in relation to ground 2:
36. The Minister acknowledges that events after the end of a relationship can comprise relevant family violence. Relevantly, r 1.23(14) makes this clear, as it requires that only part of the violence occur while the married relationship existed. That sub-regulation provides:
For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
37. However, what that sub-regulation also makes clear is that at least some of the relevant family violence has to take place while the relationship exists. Put simply:
37.1. Actual or threatened conduct that occurred wholly during the time while the married or de facto relationship existed can be the basis of a finding by an independent expert that a person has suffered relevant family violence for the purpose of r 1.23(13); or
37.2. Actual or threatened conduct, some of which occurred while the relationship existed and some which occurred after the end of the married or de facto relationship can be the basis of a finding by an independent expert that a person has suffered relevant family violence for the purpose of r 1.23(14); but
37.3. Where the only actual or threatened conduct that might comprise relevant family violence as defined in r 1.21 occurred after the married or de facto relationship ended, that cannot be the basis for a finding that the alleged victim suffered relevant family violence for the purposes of the Regulations.
38. The requirement that part of the family violence must have occurred while the marriage or de facto relationship was in existence is further made clear by the Explanatory Memorandum to the Migration Amendment Regulations 2009, where it was said of the introduction of r 1.23(14):
In addition the new regulation introduces the requirement, in new subregulations 1.23(2), 1.23(5), 1.23(7), 1.23(12) and 1.23(14), that the family violence, or part of the family violence, must have occurred when the married or de facto relationship was in existence.
This reinforces that the purpose of the family violence provisions is to ensure that visa applicants are not required to remain in a relationship where family violence is occurring.
39. In the present case, the independent expert found that no family violence occurred while the relationship still existed. The independent expert also found that the alleged threat from the bikies, which she accepted caused the applicant to fear for his safety, occurred after the relationship had ended: see CB 332, 380. There is no error in this approach by the independent expert. On the independent expert’s findings, the alleged threats from the bikies could not have caused her to hold the opinion that the applicant suffered relevant family violence pursuant to r 1.23(13) because there was no finding of relevant family violence that occurred while the married relationship existed and a finding that the applicant suffered relevant family violence cannot be based solely on events after the end of the relationship.
40. To the extent that the Full Court’s decision in Perez v Minister for Immigration and Border Protection [2017] FCAFC 180 might suggest otherwise, that case is distinguishable on the basis that there was some uncertainty in Perez as to when the relationship ended: see Perez at [8]. No such uncertainty exists in the present case, with the applicant giving clear evidence that the relationship ended on 26 July 2016: CB 331; see also the Tribunal decision at CB 429, 432. Further, there are no clear indicators in this case that the independent expert formed the view that events after the end of the relationship could never be the basis for a finding that relevant family violence occurred, unlike the position in Perez at [10]-[15].
41. Ground 2 should be dismissed.
Consideration
A similar issue to what is seen in the present case arose in Perez.
In Perez, the appellant claimed that there had been four incidents of physical violence between September 2011 and July 2012. The appellant also claimed to have been subjected to verbal threats and abuse after the relationship ended. The appellant’s evidence about when the relationship ended was unclear – she suggested both June 2012 and early July 2012: Perez at [7]-[8].
At [9], the Full Court of the Federal Court explained how the independent expert had fallen into error (emphasis added):
9. We are satisfied that the independent expert formed her opinion based on the incorrect belief that the only relevant family violence was that which occurred during the relationship. As a result the independent expert excluded from her consideration the claims of threats and verbal abuse communicated to the appellant after the relationship ceased and, in our view, the physical violence claimed to have occurred on 5 July 2012, despite the uncertainty about the date on which the relationship ended. Accordingly, the opinion of the independent expert was based on a misunderstanding of the statutory question. The correct question was whether the appellant had suffered family violence the whole or part or of which occurred during the relationship. The independent expert, however, asked only whether the appellant had suffered family violence during the relationship…
The Full Court then went on to discuss how it had drawn the inference that the events which occurred after the relationship were excluded from consideration by the primary judge. Relevantly, the Full Court stated (emphasis added):
11. Under the heading “Physical Abuse Allegations” the independent expert identified three claims of physical abuse ending with an incident in April 2012. As noted, the appellant claimed four incidents of physical violence, the last being on 5 July 2012.
12. Under the heading “Financial Abuse Allegations” the independent expert referred to the husband’s visit to the family home on 5 July 2012 but in so doing did not mention the allegation of physical violence on that occasion which led to the appellant reporting her husband to the police.
13. In a summary table describing the incidents the independent expert said that the appellant “made reference to three examples of alleged physical abuse that occurred in September 2011, October 2011 and April 2012”. Again, as noted, the appellant claimed four incidents of physical violence, the last being on 5 July 2012.
14. In discussing another psychological assessment of the appellant which was conducted in September 2013 the independent expert noted that the appellant had answered yes to the question “In the last year, has your partner hit, kicked, punched or otherwise hurt you?” The independent expert said that as the relationship had ended in June 2012 “it would be impossible to have experienced the above in the last one year from the date of testing”. This observation is incorrect if it is possible, as it is, for family violence within the meaning of the Regulations, to occur after the relationship has ceased.
15. In discussing the same psychological assessment the independent expert referred to the appellant feeling afraid of her husband after the relationship ended (which might be in reference to the threats and abuse said to have been communicated to the appellant on 14 July 2012) but then said “…although these examples fall outside the scope of ‘family violence’ within the migration regulations as such examples need to have occurred whilst in the relationship”. While the Minister did his best to explain away this statement it is incapable of bearing any meaning other than that the independent expert proceeded on the incorrect basis that only incidents which occurred during the relationship were capable of constituting relevant family violence.
…
19. …As the Minister submitted, it is for the independent expert alone to form an opinion whether the alleged victim has suffered family violence. Provided the independent expert’s opinion is an opinion formed in accordance with law, the way in which the opinion is formed and the opinion itself are matters for the expert, not the courts. The fact that independent expert identified each incident (as the standardised from required) does not mean that the expert failed to consider the cumulative effect of the material as a whole. Subject to the fact that, in the present case, the independent expert wrongly confined her opinion to incidents occurring during the relationship, it is apparent from the references on which the Minister relied that the independent expert evaluated the cumulative effect of the material. Further, the independent expert did not impose any particular requirement of causation, whether the label be direct or indirect. The independent expert, referring to the incidents which occurred during the relationship (which is the jurisdictional error in this case), concluded that the appellant’s fear and apprehension were caused by the end of the relationship, and not by the incidents of violence. This opinion cannot stand because the independent expert wrongly formed this opinion without considering the events occurring after the relationship ended, but the independent expert did not err in her approach to causation. The reason that the opinion cannot stand is that it is not possible to conclude that the error was immaterial. It is possible that if the independent expert had considered the events occurring after the relationship ended, the independent expert may have formed a different opinion that the appellant had suffered family violence.
The Minister also referred the Court to the decision in Zreika v Minister for Home Affairs [2020] FCA 995 (“Zreika”). The Court will return to the facts of Zreika further below. Relevant for present purposes, however, is the following passage from Zreika:
114. Nor does a fair reading of the report support a finding that the expert excluded the incident with the sponsor’s brother from consideration solely because it occurred after the relationship ended. The expert certainly found that the incident clearly occurred after the relationship had ended. It followed that if that was the only incident of family violence that was found to have occurred, it could not alone have supported a finding that Mr Zreika had suffered family violence by reason of reg 1.23(14) of the Regulations. Be that as it may, the expert clearly considered that incident and found that it could not, in any event, amount to family violence committed by the sponsor because the sponsor did not instruct her brother to engage in the relevant conduct. That was the main finding made by the expert in relation to the alleged incident.
For convenience, reg 1.23(13) and (14) provide:
(13) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) an application for a visa includes a non‑judicially determined claim of family violence; and
(b) the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.
(14) For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
On one reading, reg 1.23(13) and (14) of the Regulations are entirely distinct from the independent expert’s opinion. They should not be used to inform the independent expert’s opinion. The task of the independent expert on referral is to form an opinion on whether the alleged victim has suffered the relevant family violence. The definition of “relevant family violence” does not include any temporal restriction.
The operation of reg 1.23(13) and (14) of the Regulations is enlivened after the opinion has been formed. This is suggested from reg 1.23(13)(b) which refers to the “opinion of an independent expert that the alleged victim has suffered relevant family violence”. It suggests that the opinion has been formed. It is then for the Minister, or the Tribunal, to have regard to reg 1.23(14) and determine whether the violence or part of the violence which led to the opinion that family violence had occurred did actually occur during the relationship.
On this construction of reg 1.23(13) and (14), the independent expert can form the opinion that relevant family violence occurred after the relationship. The Tribunal, by virtue of reg 1.23(10)(c)(ii), must accept this. However, the Tribunal is then required to consider reg 1.23(14) and, accordingly, discount any family violence which the independent expert had formed the opinion did occur, albeit after the relationship ended.
On the above reading, and consistent with the referral under reg 1.23(10)(c)(i), the correct question is whether the applicant suffered family violence perpetrated (or committed) by the sponsor.
However, the above reading is inconsistent with both Perez and Zreika – which both state that the correct question is whether the applicant had suffered family violence the whole or part or of which occurred during the relationship. The requirements of reg 1.23(14) of the Regulations have been imported into the correct question. Accordingly, that is the basis upon which the ground falls to be determined.
There was no error in the approach by the independent expert here. She asked herself the correct question as per Perez.
Here, the independent expert (unlike in Perez), did not completely ignore or disregard the alleged threats made by bikies. She found, positively, that this caused the applicant to fear for his safety after the relationship ended.
Accordingly, the independent expert clearly found that the bikie threat occurred after the relationship had ended. This was the only incident that was found to have caused the applicant to fear for his safety. Hence, it could not alone have supported a finding that the applicant had suffered family violence by reason of reg 1.23(14) of the Regulations: Zreika at [114].
Further, it is apparent that the independent expert asked the correct question when one considers the context surrounding the statement about “the bikies”. Relevantly, the independent expert states (CB 325):
Further, at no stage did his comments indicate he had reasonably felt fear for his safety or felt reasonable apprehension for his wellbeing while in the relationship. It is accepted that he feared for his safety after the relationship ended, when he was allegedly threatened by two associates of [the sponsor’s] new love interest. He stated he did not report that threat to the Police.
That first statement is dispositive. The applicant here had not indicated (and there was no evidence) that he feared for his safety or felt a reasonable apprehension for his wellbeing while he was in the relationship. No whole or part of the fear for his safety occurred during the relationship. The independent expert asked herself the correct question and, in doing so, considered all aspects of alleged family violence.
The question that the independent expert was required to ask was asked and determined. Insofar as the applicant submits that any further questions arose, this is rejected.
Ground 2 is dismissed.
GROUND 3
Ground 3 provides:
3. The decision made by the Second Respondent is vitiated by jurisdictional error due to the independent expert failing to consider integers of the Applicant’s claim to have suffered relevant family violence.
Particulars
a. The independent expert failed to consider whether the Applicant’s claim that he had been threatened by “bikies” was relevant family violence.
b. The independent expert failed to consider whether the Applicant’s claim that he was deprived of his dog was relevant family violence.
The parties advanced no submissions in relation to particular (a). To some extent particular (a) overlaps with ground 2.
Here, the applicant claims that the independent expert failed to consider whether the claim to be threatened by bikies was “family violence”.
Context matters.
The independent expert describes the applicant’s claim as follows (CB 361):
He further alleged he was threatened by two men a few weeks after the separation, who he claimed were outlaw motor cycle gang associates of the man his wife had allegedly been having sexual relations with. He stated he was told to leave [the sponsor] alone or he would have both legs broken. He said he has not attempted contact with [the sponsor] and has had no further threats.
In the independent expert’s report, she states (CB 332):
It is accepted that he feared for his safety after the relationship ended, when he was allegedly threatened by two associates of [the sponsor’s] new love interest. He stated he did not report that threat to the Police.
In response to the independent expert report, the applicant made the following statement (CB 348):
…I spoke to her about the bikies that my wife associated with, she would have used the bikies to hurt me…
In the supplementary report, the independent expert added (CB 380):
In my report I noted that Mr Almpantis had advised he experienced fear for his safety after the relationship ended, subsequent to him allegedly having been threatened by two men. He said he was told “if you do anything to [the sponsor] we will break your legs”, by people he believed to be outlaw motorcycle gang associates of his ex-partner, in August or September 2016. During both interviews he stated he had received no further threats. He claimed to still experience fear related to those threats whenever he saw a motorcyclist when driving. He said he feared a motorcyclist could pull alongside, “grab a gun and shoot” at him. His thinking appeared irrational given his initial account of the threat, his reported compliance with it, and the time which had elapsed since it was made. According to his account in both interviews, the fear to his safety resultant from the threat had commenced after the relationship had ended. Further, the threat was reportedly not made by his then estranged wife.
Zreika (referred to above) is instructive here. In Zreika, it was alleged that the independent expert had failed to consider a claim that the sponsor had “involved her family against the appellant”. The evidence showed that the sponsor’s brother “got into an argument with the appellant at the sponsor’s insistence”. Justice Wigney explained:
110. The expert’s response to the claim concerning the sponsor’s brother was set out in full earlier in these reasons. In short, the expert noted that during the interview Mr Zreika did describe an incident that occurred between him and his brother-in-law, but that he had maintained that that incident occurred after the breakdown of the relationship. The expert noted, in that context, that the incident “would not be considered relevant family violence”, apparently because it occurred after the breakdown of the relationship. The expert then noted that Mr Zreika “did not indicate that the sponsor instructed her brother to commence an argument with Mr Zreika”. The expert repeated her conclusion that her opinion was that, having regard to all of the information available to her, Mr Zreika had not suffered relevant family violence.
His Honour then considered Perez and determined (emphasis added):
112. There does appear to be some similarities between the expert’s opinion in this case and the expert’s opinion in Perez, which was found to be based on a misunderstanding of the relevant statutory question. There are, however, also some important differences. In Perez, the expert’s view that incidents that did not occur during the relationship fell outside the scope of “family violence” under the Regulations caused her to exclude altogether any consideration of certain specific incidents, even though there was some uncertainty about the date that the relevant relationship had ended. In this case, however, the expert did not exclude altogether from her consideration the incident involving the sponsor’s brother. Rather, she considered it and found, amongst other things, that Mr Zreika did not indicate that the sponsor had instructed her brother to commence an argument with Mr Zreika. It should be emphasised, in this context, that the relevant criterion requires that the applicant has suffered family violence “committed by the sponsoring partner”: cl 801.221(6)(c)(i) of the Regulations. The point that the expert appeared to be making, when noting that there was nothing to indicate that the sponsor had instructed her brother to commence an argument, was that the incident did not involve family violence committed by the sponsor. If there was any violence, it was committed by the sponsor’s brother.
113. In Perez, the Full Court found (at [9]) that the “correct question was whether the appellant had suffered family violence the whole or part of which occurred during the relationship”, whereas the independent expert had only asked whether the appellant had suffered family violence during the relationship. The same conclusion cannot be reached in this matter. A fair reading of the expert’s report, including the supplement, in its entirety does not support a finding that the expert proceeded on an incorrect understanding of the statutory question, or approached the matter as if it was only relevant to consider whether Mr Zreika had suffered family violence during the relationship.
114. Nor does a fair reading of the report support a finding that the expert excluded the incident with the sponsor’s brother from consideration solely because it occurred after the relationship ended. The expert certainly found that the incident clearly occurred after the relationship had ended. It followed that if that was the only incident of family violence that was found to have occurred, it could not alone have supported a finding that Mr Zreika had suffered family violence by reason of reg 1.23(14) of the Regulations. Be that as it may, the expert clearly considered that incident and found that it could not, in any event, amount to family violence committed by the sponsor because the sponsor did not instruct her brother to engage in the relevant conduct. That was the main finding made by the expert in relation to the alleged incident.
115.It was the expert’s finding that there was no evidence to indicate that the sponsor instructed her brother to engage in the relevant conduct which was the critical finding made by the expert.
The facts here differ slightly from Zreika. Here, the applicant had suggested in his response to the independent expert’s report that the sponsor would have used the “bikies” to hurt him. In Zreika, no such suggestion was made and the independent expert made an express finding that there was no evidence that any incidents occurred at the request of the sponsor.
Here, no such finding is made. The independent expert does not consider the applicant’s suggestion that the sponsor had “used” the bikies to threaten him.
It is apparent from the supplementary report that the independent expert found that the incident with the bikies occurred after the relationship had ended. It is also apparent that the independent expert considered that the threat was not made by the sponsor (but by a third party).
Implicitly, the independent expert here appears to be suggesting that the threat was not “committed by the sponsor”. In Zreika, this was sufficient to determine that the independent expert had not excluded from consideration the alleged incident. However, there is no such express finding here.
While the family violence must be “committed by the sponsor”, this does not require that the actual or threatening conduct be at the hands of the sponsor. It includes circumstances where the sponsor has requested a third party to engage in threatening conduct toward a sponsor. If the Court was to conclude otherwise it would create a large (and entirely unfair) “gap” for exploitation by perpetrators (or instigators) of family violence.
Here, there was a claim made that the sponsor had “used the bikies” to threaten the applicant. That was a threat, albeit occurring after the relationship had ended, that the independent expert accepted had caused the applicant to fear for his safety. This was a vital integer of the applicant’s claims of family violence. Whether it was material will be discussed below. However, there was no consideration of this issue and no “critical finding” was made.
Accordingly, particular (a) establishes error.
In relation to particular (b), Mr Glenister for the applicant submitted that the claim concerning the applicant’s dog was capable of fulfilling the definition of family violence. The independent expert made no finding or reference to this claim (despite noting that the applicant was “visibly distressed” when talking about the claim). The failure to address this claim was also an error.
Ms Ladhams for the Minister acknowledged that the independent expert did not expressly address the claim in the individual consideration of the alleged family violence incidents. However, Ms Ladhams submitted that the claim was considered in the context of addressing the emotional abuse the applicant alleged to be a victim of and that the independent expert “essentially found that the applicant’s allegations of the sponsor giving away his dog did not cause him to reasonably fear for his safety or feel reasonable apprehension for his wellbeing”.
Ms Ladhams refers to the following passage in the expert opinion:
According to Mr Almpantis, [the sponsor] engaged in emotional abuse by returning his pet dog (which he had for almost 12 months) to the breeder after their physical separation. He claimed she had told the breeder he had hit the dog, which he stated was untrue. The breeder reportedly told Mr Almpantis that she had given the dog to a family. Mr Almpantis also stated that he heard from [the sponsor’s] mother (some months after the relationship ended) that a dog they had obtained when together (which he claimed had “liked” him more) had been euthanised by [the sponsor]. He further alleged he was threatened by two men a few weeks after the separation, who he claimed were outlaw motor cycle gang associates of the man his wife had allegedly been having sexual relations with. He stated he was told to leave [the sponsor] alone or he would have both legs broken. He said he has not attempted contact with [the sponsor] and has had no further threats.
Mr Almpantis appeared a little unsure regarding his claim of financial abuse. He stated that initially finances were not an issue, however after their marriage [the sponsor] apparently suffered a business downturn and was unable to pay herself a wage from her business. He stated she covered certain needs (such as her vehicle and fuel) through her hairdressing business and that he paid “all of the bills”, although he noted they did not pay rent as the property they lived in belonged to her mother. He claimed over the last few months she had paid nothing towards their living expenses, and he had assisted her with items such as her car registration and her mortgage on another property. He stated he had told her “I cannot pay for everything as I don’t have enough money”. He reflected that when he was in the relationship, he did not consider he was being financially abused, because she had willingly paid when she had money. He disclosed that since the relationship ended, he has reviewed his thinking and now believed that she may have deliberately taken advantage of him in the latter stages. He noted that he had purchased a substantial amount of furniture that had remained with [the sponsor]. He also claimed some of his personal possessions remained with her, because he was denied opportunity to access the house to reclaim them. When asked if he thought she had sponsored him for the purpose of financially exploiting him, he replied he did not believe so.
Mr Almpantis spoke of having feared his wife’s verbal abuse and having felt worthless and humiliated by her actions. He alleged she manipulated him by threats (to end the relationship if he did not do as she wanted) and lies. His descriptions suggested she tended to lash out verbally when frustrated and upset. Further, his comments suggested the union had not developed to a stage enabling it to endure the significant external stressors it was exposed to. Consequently, it appeared their stress was exacerbated, and the result was alienation between the pair. The instances of alleged abuse Mr Almpantis described did not display persevering controlling or coercive behaviour by [the sponsor] toward him, which is a primary characteristic of family violence. Further, at no stage did his comments indicate he had reasonably felt fear for his safety or felt reasonable apprehension for his wellbeing while in the relationship. However, it is noted that he reported fearing for his safety due to the alleged threat by the two men, which he said was made several days after the relationship had ended
It is readily apparent that the “essential finding” is made some time after the independent expert refers to the applicant’s claim about the dog. It also occurs in the context of a paragraph addressing “verbal abuse”.
Further, the passage that Ms Ladhams relies upon in the expert opinion is as follows:
Further, at no stage did his comments indicate he had reasonably felt fear for his safety or felt reasonable apprehension for his wellbeing while in the relationship.
Given that the discussion referred to above about “the dog” made it clear that the incident occurred after the applicant and sponsor had separated, this finding cannot be seen as addressing the claim about the dog. Such a claim was not something that occurred “while in the relationship”.
In circumstances where the independent expert again noted that the applicant had been “distressed” when speaking about the dog, the fact that the independent expert left this matter “hanging” leads the Court to infer that the independent expert did not consider whether this claim amounted to family violence.
Accordingly, particular (b) is made out.
Overall, ground 3 is made out.
Materiality
An error will only be jurisdictional where it is material – that is, the error would not have realistically deprived the applicant of the opportunity of a successful outcome: Minister for Immigration & Border Protection v SZMTA [2019] HCA 3.
Ms Ladhams for the Minister submitted that any error here (as per ground 3 above) was not material. It is argued:
49. That is because both incidents of alleged relevant family violence relied on by the applicant in this proceeding are events that happened after the relationship had ended. This can be seen from the independent expert’s description of the claims, in particular at CB 324.
50. As indicated above, pursuant to r 1.23(14), at least some part of the relevant family violence must have occurred while the married relationship was still existing. The independent expert clearly found that none of the applicant’s allegations of verbal, emotional, psychological or financial abuse that were said to have happened while the relationship still existed amounted to relevant family violence. This means that, even if the independent expert had accepted that either or both of the alleged threats by bikies or the alleged giving away of the applicant’s dog met the definition of ‘relevant family violence’ in r 1.21, the applicant would not meet the relevant legislative criteria for the grant of the visa, as no part of the relevant family violence occurred while the relationship was still in existence.
The Court agrees in this regard.
Even if the independent expert had properly considered the claims relating to the bikies and the applicant’s dog, both of these instances occurred after the relationship had ended. The whole or part of the violence did not occur during the relationship and there was no evidence that any violence occurred while the relationship was ongoing.
In relation to the claim about the bikies, the Tribunal, stated:
The tribunal makes the observation that, in relation to the claim about the bikies and the threat in relation to making a claim, this was post cessation of the relationship and, because of that, is not a matter or matters that are relevant to the consideration of relevant family violence having occurred prior to cessation of the relationship. For this reason, the tribunal has not included that within its considerations.
Accordingly, even if the independent expert had held the opinion that the bikie threat was “family violence”, the Tribunal found that it would not include this within its consideration as it occurred after the relationship had ceased. The applicant does not challenge the Tribunal’s finding. Further, the Tribunal has properly applied reg 1.23(14) of the Regulations as it is clear that the whole, or part of that claim, occurred after the cessation of the relationship. Here, there was simply no evidence that any violence occurred while the relationship was still on foot.
Accordingly, any error in relation to the claim about the bikies was not material and could not have deprived the applicant of a successful outcome.
In relation to the claim about the applicant’s dogs, in light of reg 1.23(14) of the Regulations, this claim could not be taken to have been family violence. It too occurred after the relationship had ceased and there was no evidence that any violence occurred while the relationship was ongoing. No part of the claim occurred when the applicant was in the relationship. This is made clear by the Tribunal’s statement that, at no stage, did the applicant indicate that he had reasonably felt fear for his safety or felt reasonable apprehension for his wellbeing while in the relationship.
As was stated in Zreika at [114], even if the claim about the applicant’s dogs had caused the applicant to fear for his wellbeing, it alone could not have supported a finding that the applicant had suffered family violence by reason of reg 1.23(14) of the Regulations. Accordingly, any error in failing to consider the claim or determine whether it was “relevant family violence” was immaterial.
Both incidents that the applicant claims were the subject of error by the independent expert could not, if determined as the applicant suggests, have realistically provided the applicant with the possibility of a successful outcome. The independent expert’s findings (i.e., that the incidents occurred after the relationship ceased and the applicant did not fear for his safety or wellbeing during the relationship) were such that, by virtue of reg 1.23(14) of the Regulations, they were to be excluded for the purposes of determining whether cl 820.221(3) of the Regulations was met.
Where an error is not material, it does not have the character of jurisdictional error.
CONCLUSION
Any error made by the independent expert was not material to the outcome of the review. On that basis, no jurisdictional error arises.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 May 2021
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